cussed-those intuitions of right and wrong of which we are all conscious. If not, what is this "law of nature"? Where is it to be found? How is it to be identified? Is it the same in Timbuctoo or Teheran as it is in London or New York? Or does it vary with the latitude of each place, or with the degree of civilisation there in vogue? Again, was it the same in the time of Samson or Theseus as it was in the days of Ulpian or John Bright? If not, then where are these variations recorded? As a matter of fact, there is not now and never was any such thing as a "law of nature" in any sense in which a practising lawyer of to-day understands the word "law." It is just a convenient and very elastic term which is sometimes used as identical with the law of God or conscience, or "natural justice," while at other times it seems to denote little more than savage customs or animal instincts.' For us, then, there are but two kinds of law-the law of God and the law of the State. Henceforward in this book by the word "law" will be meant the law of the State. A State may be roughly defined as a political community which governs itself. It governs itself by means of laws. It is essential to the welfare of the community that in every State there should exist an authoritative body of law, readily accessible, easily intelligible, and strictly and impartially enforced. This body of law should comprise all rules, whether customary or written, which have been laid down for the guidance of the community and to which its members, if they would avoid penal consequences or civil liability, must necessarily conform." It should have lucid expression and scientific arrangement. Its provisions should be clear and certain and such as can be easily understood by those who have to obey them. A law, then, is a rule of conduct which the State prescribes and enforces on its subjects. Different States have different laws; and even in the same 1 Just. Inst. I. 2; Dig. I. 1. 1. 3. 2 These penal consequences and civil liabilities are called by writers on jurisprudence the "sanctions" of the law, because they think that, without them, the law would not be binding on the subjects of the State-in other words would not be law at all. State different bodies of law may co-exist. Thus in the British Empire there are more than fifty different legal systems administered in our various Law Courts. In different States, too, the power of making laws is vested in different persons or bodies of persons. In strict monarchies this power resides in the King alone. But in early times the King, who was, as a rule, merely a successful soldier with a strong will of his own, generally sought advice and assistance in his law-making from the great men of his realm. A committee of Nobles or Notables was thus formed, which soon was permitted to usurp legislative functions and organised itself into a Great Council or Senate. Later on the common people began to make its wishes felt; it purchased redress of its grievances with blood or money, and subsequently acquired some voice in the making of the laws to which it had to submit. Eventually in most countries certain classes of the people obtained direct representation in the legislative chamber. A State may thus be a monarchy, an aristocracy or a democracy. In England we have a curious medley of all three. Yet the will of the people ultimately prevails, whenever the people has a will and cares to make it felt. Hence more and more every year the tendency of our legislation is, without either advancing or injuring the special interests of any particular class, to assert, maintain and promote the overriding claims of the community as a whole. Every law is made by the State, either directly or indirectly. The sovereign legislature (be it one person or many) may, and usually does, confer on inferior bodies power to make laws, e.g., a county council or town council may make bylaws, the Board of Trade may issue orders, &c.1 Rights and duties, wrongs and remedies, are the subjectmatter of law. Laws create rights and impose duties. Every right involves a corresponding duty in others; and to nearly every duty there is a corresponding right. Rights are always conferred, and duties are always imposed, on persons"-a term which includes, in addition to human beings, certain 1 See post, pp. 91-101. 66 artificial bodies, which the State recognises as persons, such, for instance, as corporations. Every violation of a right, every neglect or breach of duty, is a wrong for which the State, as a rule, provides a remedy.' Rights are of two classes. Some are absolute rights, which every one within the realm possesses, be he prince or pauper, British subject or alien. These may be called public rights, as every member of the public possesses them." Others are rights enjoyed only by individuals, who happen to own certain property, to hold a certain office or to have entered into a special contract, &c. These are called private rights. They are of infinite variety; but the great majority of them relate to property. Rights of property are of four kinds : (i.) A right to the exclusive enjoyment of land, or of a thing a right to have it and use it and dispose of it as one's own. This is ownership or dominion (jus in rem). (ii.) A right to seize, or hold, or use, or enjoy, land or a thing which belongs to another person (jus in re aliena). (iii.) A right against a person merely; a right to make him hand over to you land or money or some thing (jus in personam).3 (iv.) There is a fourth class of rights which is growing more and more important every day. It includes the exclusive right to manufacture and use a particular invention, the exclusive right to make copies of a book, poem, play, picture or design, and the exclusive right to attach to goods a particular trade mark, or to prevent any one else from selling goods under a name well known in the trade. All these acts may be innocent in themselves, but they become wrongful whenever the law has given to another person the sole right to do these acts. Such rights are clearly a kind of property." There are other rights known to the law, which are not rights of property. 1 "Semble que toutes fois ou on a aucun tort ou damage, la ley done a luy un remedy, et ceo per voye daccion." Year Book 12 Hen. VIII. (A.D. 1520), p. 3. 2 These are discussed in the next chapter. These rights of property are discussed in Chapters III., IV. and V., post, pp. 17-38. See Infringement of Patents, Copyrights, &c., post, pp. 597-622. (v.) A right attaching to an office, and personal to the present holder of that office and to him alone. Thus a judge, sheriff, mayor or policeman has rights which a private citizen does not possess. (vi.) A right arising out of family or other relationship. Thus parent and child, husband and wife, guardian and ward, have mutual rights, which are discussed under the Law of Persons.1 1 Book VI., pp. 1351 et seq. CHAPTER II. PUBLIC RIGHTS. UNDER this term we group those absolute rights which every one in the realm possesses-which do not depend upon the ownership of property, or the tenure of any office, or the existence of any contract between the parties. First among these stands the right of personal security. "The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation, to each of which he has a natural inherent right, which cannot be wantonly destroyed, infringed or restricted without a manifest breach of civil liberty." Every citizen enjoys the right of personal liberty; he is entitled to stay at home or walk abroad at his pleasure without interference or restraint from others. Any confinement or detention, for which no legal justification can be shown, is a "false imprisonment." Ancillary to the right of personal security is the right of self-defence. Every man may repel unlawful force by force; and this whether such unlawful force be directed against himself or against his wife, child or servant, and probably if it be directed against any weak or helpless stranger. Again, every one who is inside a house is entitled to use force to prevent the forcible entry into that house of any one who has no right to enter it. Every man's house is his castle." This right is not confined to the occupier of the house or even to his family or servants. Any stranger, who is lawfully present in the house, may exercise this right. And even where no attack is being made upon a man or upon his wife, child or servant, still he may always interfere to prevent any one from committing treason or any felony, or 1 1 Bla. Com. 129. |